Speaking with difficulty

New advice from the Charity Commission sows some confusion

The Charity Commission has recently published some new guidance which is intended to help trustees protect their charities against “abuse by extremists.” This guide/toolkit though seems to offer a particular challenge to universities which are subject to legislation on external speakers dating back to 1986 which was designed for a quite different purpose.

Let’s start with the new guidance from the Commission on “Protecting your charity against abuse by extremists”:

The guide, which is available on the regulator’s website from today [Tuesday 22 January 2013], explains trustees’ duty to prevent their charity being used to promote extremist views or terrorist ideology.

The toolkit also suggests steps trustees can take to minimise risks associated with particular activities, such as organising public events and debates and circulating information.

It is aimed in particular at charities that host regular events involving external speakers, and those with educational purposes that distribute material and information. Examples include charitable think tanks and debating societies, students’ unions, schools, colleges and universities and religious charities.

OK, so far so general. But when we get to the detail of the guidance it becomes clear that the Commission things get a bit interesting. Whilst any illegal views or action is, of course, unacceptable, charities are required to consider whether allowing a particular speaker to present their views may be inconsistent with public benefit as this extract from Chapter 5, Section E of the guidance indicates:

Under charity law, charities must comply with the public benefit requirement. Views or activities which are violent or which encourage violence cannot be for the public benefit because they are illegal. In addition, there are other extreme views and activities, particularly activities which seek to radicalise or use radicalising materials which may be inappropriate for a charity to host or promote. Such views may not be in furtherance of the charity’s purposes, or may breach the rules on political activities. Other extreme views may help to create an environment conducive to terrorism. In addition, promoting views which are harmful to social cohesion, such as denigrating those of a particular faith or promoting segregation on religious or racial grounds, or which seek to radicalise by making claims to which violence is subsequently presented as the only solution may well be inconsistent with the public benefit requirement even though such views might fall well below the criminal threshold. All these pose unacceptable risks to a charity.

But if we look now at The Education (No. 2) Act 1986 there is a very direct requirement on universities to ensure and promote freedom of speech. This dates from a time when Conservative ministers were being prevented from speaking on university campuses by the actions of well-organised groups of students and the government was therefore keen to ensure they were protected and enabled to present their views. The Act provides that:

(1)Every individual and body of persons concerned in the government of any establishment to which this section applies shall take such steps as are reasonably practicable to ensure that freedom of speech within the law is secured for members, students and employees of the establishment and for visiting speakers.
(2)The duty imposed by subsection (1) above includes (in particular) the duty to ensure, so far as is reasonably practicable, that the use of any premises of the establishment is not denied to any individual or body of persons on any ground connected with—
(a)the beliefs or views of that individual or of any member of that body; or
(b)the policy or objectives of that body.

So there is a positive duty to ensure that speakers are not prevented from speaking because of their views or beliefs or the policies of the organisation.

In addition, universities have to have in place a code of practice which sets all of this and there are further specific obligations:

A duty on every individual and body of persons concerned in the government of the institution to take such steps as are reasonably practicable (including, where appropriate, the initiation of disciplinary measures) to secure that the requirements of the code of practice are observed.

A duty to ensure that the use of any university premises is not denied to any individual or body of persons on the grounds of their beliefs, views, policies or objectives.

Whilst it is clear that the 1986 Act does not extend to speakers who break other laws or incite violence, nevertheless it does appear to require universities to adopt a rather different position to that set out in the Charity Commission’s guidance. Whilst this legislation and the Commission’s guidance are separated by over quarter of a century of change in HE and are intended to address very different challenges, the apparent conflict between them is, I fear, going to cause some real problems for universities before too long.